BRAGG v. GENESEE COUNTY AGRICULTURAL SOCIETY

Order unanimously affirmed without costs. Memorandum: While riding his motor bike along a gravel roadway on the property of defendant Genesee County Agricultural Society, plaintiff fell down a 10-foot slope and sustained serious injuries. Plaintiff's fall occurred where gravel was being excavated from the roadway. The record establishes that, for a number of years, recreational vehicles had used the gravel roadway and land adjacent to the excavation site, an activity enumerated in General Obligations Law § 9-103. The property was physically conducive to that activity and appropriate for public use (see, Iannotti v Consolidated Rail Corp., 74 N.Y.2d 39; Sega v State of New York, 60 N.Y.2d 183; Jacobs v Northeastern Indus. Park, 181 A.D.2d 720; Fenton v Consolidated Edison Co., 165 A.D.2d 121, lv denied 78 N.Y.2d 856; Hoffman v Joseph R. Wunderlich, Inc., 147 A.D.2d 807, lv denied 74 N.Y.2d 612). Plaintiff has failed to present any evidence that defendant Genesee or defendant Lathan acted willfully and maliciously in failing to warn him of the dangers of the excavation to bring him within the exception in General Obligations Law § 9-103 (see, Sega v State of New York, supra; Clark v State of New York, 178 A.D.2d 908; Fenton v Consolidated Edison Co., supra; Gardner v Owasco Riv. Ry., 142 A.D.2d 61, 64, lv denied 74 N.Y.2d 606).